Delhi High Court

Amit Bhardwaj vs State & Anr on 28 January, 2020

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Judgment Reserved On: 16.12.2019
                             Judgment Pronounced On: 28.01.2020

+       W.P.(CRL) 3140/2019

        AMIT BHARDWAJ
                                                        ..... Petitioners
                           Through:     Mr. Puneet Mittal, Mr. Dinesh
                                        Yadav, Mr. Manoj Kumar &
                                        Ms.    Suchita      Kaintura,
                                        Advocates.
                           versus
        STATE & ANR.
                                                      ..... Respondents
                           Through:     Ms. Sanjay Lao, ASC for
                                        State with Mr. Karanjeet
                                        Sharma Adv. for R-1/State.
                                        Mr. Shoeb Alam & Ms.
                                        Pallavi Pratap, Advs. for R-2

HON'BLE MR. JUSTICE BRIJESH SETHI

                          JUDGMENT

BRIJESH SETHI, J

1. This is a writ petition under Article 226 & of the Constitution

of India r/w. Section 482 & 483 Cr.P.C. filed by the petitioners for

quashing and cancelling the FIR No.219/2019 u/s 341/323/506/34

IPC, PS Prashant Vihar, New Delhi.

2. While praying for quashing of FIR, the Ld. Counsel for the

petitioner has submitted that petitioner among others have been

named as accused in various FIRs in different States of India

wherein the allegations are essentially of a civil nature, being given

criminal colour, registered across Delhi, Chandigarh, Kolkata,

Maharashtra and Bengaluru. The nature of allegations are common

in all the FIRs that the petitioner, in conspiracy with other accused

persons induced the complainant(s) to invest in Bitcoin (crypto

currency), through the website http://gainbitcoin.com operated by

the company Variabletech Pvt. Ltd., Singapore, which is owned by

the petitioner and other accused persons. Petitioner represented to

the complainant that the Return of Investments (ROI) in Bitcoin

was very high. The complainant was promised that 10% of the total

number of Bitcoins purchased shall be transferred to the Bitcoin

wallet of the complainant every month continuously for 18 months

for the purpose of cloud mining of Bitcoins. The return as promised

by the petitioner and other accused persons was credited to the

complainant initially for some months but was stopped thereafter

and on being contacted, the petitioner informed that due to some

technical problems with Bitcoin mining in China and Singapore,

they were unable to give the assured returns. It is further submitted

that instead, the petitioner offered to give another crypto currency-

M-cap. According to complainant the M-cap was not even worth 10

cents. It is alleged that in this manner petitioner and other accused

persons cheated the complainant and committed offences under

Sections 406/420 r/w. Section 120-B IPC. The petitioner was

arrested by Pune police, in case related to alleged Bitcoin Fraud on

05.04.2018. Thereafter, police officials of other cities started

obtaining custody of the petitioner and aggrieved thereof petitioner

had filed Writ Petition (Crl.) no. 304/2018 before the Hon'ble

Supreme Court and the Hon'ble Supreme Court granted conditional

bail to the petitioner vide order dated 03.04.2019.

3. It is further submitted that the respondent no.2 knew very well

that petitioner was granted conditional bail and in order to take

advantage of conditional bail, the respondent no.2 got registered the

present FIR in connivance with officials of Delhi police.

4. It is further submitted that the day of occurrence has not been

mentioned in the FIR and information was received at police station

on 28.08.2019 at about 23.41 hrs which is almost 2½ months of the

alleged incident which renders its genuineness doubtful. It is further

submitted that information noted vide DD no. 67A at about 23:41

hours and immediately the FIR was registered without inquiring into

the facts and allegations made in the complaint, which clearly shows

that some high-ranking officials from Delhi Police are also involved

with the respondent no.2.

5. It is further submitted that no offence u/s. 341 of IPC is made

out as alleged in the FIR by the respondent no.2 because as per the

FIR, he was present there alongwith Mr. Dinesh Bhardwaj and Mr.

Tarun Gupta and it is not possible for Gunmeet Dabas to stop his

way. It is submitted that no offence u/s. 323 IPC is made out

because no such incident of slapping and pushing was committed by

the petitioner. Even no offence under Section 506 IPC is made out

because petitioner was not present at the spot and, therefore, no

question to threaten respondent no.2 arises. It is, therefore, prayed

that FIR No.219/2019 u/s 341/323/506/34 IPC, PS Prashant Vihar,

New Delhi be quashed, in the interest of justice.

6. On the other hand, Ld. APP for the state has opposed the

petition and submitted that allegations levelled by the petitioner in

the present petition are false and frivolous and prosecution has

rightly registered the present FIR. It is, therefore, prayed for

dismissal of the petition.

7. Ld. Counsel for respondent no.2 submitted that scope of writ

was limited and the writ petition has become infructuous after the

filing of the Charge-sheet by the police. There was no delay in

approaching to the police. The informant promptly informed the

police about the incident and even followed up the matter with the

police. Even assuming there would have been a delay in lodging

FIR, the same cannot be a ground for quashing of the same. The

informant repeatedly requested the police to see the CCTV footage

of the incident and take appropriate action, yet the police diluted the

case and filed an NCR u/s. 155 CrPC. On 07.08.2019, the informant

protested to this and sought addition of charges. Status report dated

24.11.2019, submitted in Court by the police during hearing on

25.11.2019 discloses that CCTV recording shows informant being

slapped. It is disclosed by the investigating officer that charge sheet

has been filed against the petitioner and the other accused seen in

the CCTV. It is submitted that issues regarding imposition of

defective Section in charge sheet, delay in lodging FIR or omission

in police investigation etc. can only be raised as defences by the

accused/ petitioner during the trial. It is submitted that quashing

court will not be justified in examining the reliability or genuineness

of the allegations. Hon'ble Supreme Court in "State of Haryana v.

Bhajan Lal, 1992 Supp. (1) SCC 335" has held that the power to

quash has to be exercised sparingly and in rarest of the rare cases. It

is lastly submitted that no grounds are made out for interference in

the matter and the present writ petition may be dismissed.

8. I have considered the rival submissions and also gone through

the record. A case FIR No.219/2019 u/s 341/323/506/34 IPC was

registered at PS Prashant Vihar, New Delhi on the basis of statement

made by complainant Sh. Vipin Kohli S/o. Sh. Ashok Kumar Kohli

R/o. House No.6, Road No.42, West Punjabi Bagh, New Delhi-

110026.

9. The only question which is required to be examined is

whether the FIR bearing no. 219/2019 does not prima facie show

commission of any offence. The Hon'ble Supreme Court in State of

Haryana v. Bhajan Lal, 1992 Supp. (1) SCC 335, has held that

power of quashing a criminal proceeding should be exercised very

sparingly and with circumspection and that to in the rarest of rare

cases. Supreme Court in Bhajan Lal's case (Supra) has

categorically laid down guidelines as to when a criminal

proceedings should be quashed and it runs as follows:-

"In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence,

justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

10. Perusal of the FIR in question prima facie reveals commission

of offence under Sections 341/323/506/34 IPC by the petitioner. The

complaint filed by the petitioner on the basis of which chargesheet

has been filed runs as under;

To the SHO, Police Station Rohini, Sector-9, Prashant Vihar, Delhi-110085. SUBJECT: COMPLAINT AGAINST AMIT BHARDWAJ S/O MAHENDRA KUMAR R/O. 44, SAHIPUR MARKET, SHALIMAR BAGH, NEW DELHI AND HIS GUNDAAS (HENCHMAN) TO BURRY ME TWO YARDS BELOW THE GROUND IF I ASK MONEY WHICH IS NOW RS. 90 CRORE LOOTED BY HIM THROUGH FRAUDULENT SCHEME OF BITCOIN. Dear Sir, I, Vipin Kohli S/o Mr. Ashok Kumar Kohli R/o H.No. 6, Road No. 42, West Punjabi Bagh, New Delhi - 110026 had made the investment of Rs. 4.45 crore. I bought 1350 BITCOINS which in return now is 1850 BITCOINS as per value now is above Rs. 90 Crore. From his documents related to investment of Amit bhardwaj dated July 2016, to February 2017, which was a complete fraud and I filed a complaint to Cyber Cell, EOW on which an FIR was registered dated 15/05/2018 Case No. 0061. Amit Bhardwaj has been granted conditional bail by Hon'ble Supreme Court and he has to report on every Monday at Shalimar bagh, police station. Since last week Amit Bhardwaj sent a feeler to woe through a person that whether I can compromise if he makes good my wrong full losses. The Cyber Cell within special cell has not been able to make any recovery so far and I am going through extreme financial hardship. So I agreed to his offer. A meeting was fixed at hotel Crown Plaza where, I went with my well wisher and my friend Tarun Kumar who is also

a complainant in Amit Bhardwaj case FIR No. 35/2018 to discuss with him the modalities of payment but unfortunately to my utter shock Amit Bhardwaj did not turn up himself but sent professional Gundas led by -1 Gurmeet Dabbas, Rasulpuriya alias Nishu whose photo I am attaching who is reputedly a contract killer mobile number 9212959530. The Dabas rather than talking about setting the losses straight away threatened me to burry two yards below the ground if I accept any money from Amit Bhardwaj and also said if I want any "salamati" of my own life and my family members. He also abused me in extremely vulgar manner and threatened me to forget my money and keep out of way of Amit Bhardwaj and associates. He mocked at me by registering an FIR what I have got other than few months of jail to Amit Bhardwaj that's it. It is submitted that complaint given by me in above said police station on 20/06/2019 some facts not mentioned in my first complaint because I am under tremendous fear and due to this I am not mentioned the proper facts of the case. It is submitted that Amit Bhardwaj's professional Gundas Gurmeet Dabas and Rasulpuriya @ Nishu threatened me and stated to me to forget your money instead you have to give double money to my boss Amit Bhardwaj otherwise I kill you and withdraw your complaint as this is a trailer today will show you complete picture in future. Sir the above incident happened at Coffee shop in Hotel Crown Plaza, Rohini, time 11:30 am will 2 pm, dated 10.06.2019. You can also get the camera recording of the same from the hotel itself where you can see the whole thing. That when we tried to leave the hotel premises they tried to stop our way. When we try to walk away as we were in fear of our lives they pushed me and my friend Tarun Kumar and punched me twice on my chest. And then they threatened us that we have pay double for our legal action and we should

we stay away from any further complaints. It is requested to take legal action against Amit Bhardwaj and his associates and registered the FIR in appropriate, Section of Indian Penal Code'.

11. Perusal of the above complaint, thus, reveals that complainant

was not only threatened that he would be killed but was also stopped

from leaving the hotel. He was also punched twice on the chest and

was also threatened that he should not file any further complaint.

The allegations, thus, prima facie show commission of offences

under Sections 341/323/506/34 IPC. A perusal of the FIR, thus,

prima faice discloses commission of a cognizable offence and if the

said FIR is read as a whole it cannot be said that it does not

constitute any offence at all. According to the prosecution, a

chargesheet for the above offences has also been filed before the Ld.

Trial Court.

12. In view of the above allegations appearing on record which